Naharkey v. Sand Springs Home

• Decision Date: 10 March 1936
• Docket Number: 22179.
• Citation: Naharkey v. Sand Springs Home, 59 P.2d 289, 177 Okla. 371, 1936 OK 234 (Okla. 1936)
• Parties: NAHARKEY v. SAND SPRINGS HOME
• Court: Oklahoma Supreme Court

59 P.2d 289

177 Okla. 371, 1936 OK 234

NAHARKEY v. SAND SPRINGS HOME

No. 22179.

Supreme Court of Oklahoma

March 10, 1936

Rehearing Denied June 30, 1936.

Syllabus by the Court.

1. Restrictions upon alienation of lands inherited by full-blood citizens of the Creek Nation were imposed by section 22 of the Act of Congress of April 26, 1906, 34 Stat. 137, 145.

2. A decree entered in 1907 purporting to partition the inherited lands of a full-blood citizen of the Creek Nation which are restricted by section 22, Act of Congress April 26, 1906 constitutes prohibited alienation thereof and is void for want of jurisdiction of the subject-matter.

3. The fact that a partition proceeding void for want of jurisdiction for the reason stated in syllabus 2, supra fails to reflect upon the face of the judgment roll the quantum of Indian blood of a full-blood heir, does not make the decree therein rendered immune from a successful collateral attack.

4. Mere acquiescence by a minor Creek citizen of less than full-blood in a partition of land made by a void decree does not estop such minor from successfully asserting the invalidity of such decree.

5. A proportionate part of the reasonable and necessary cost of developing, extracting, and marketing oil by one cotenant is deductible from the share of another cotenant, who has not joined in the enterprise of developing and producing oil from the common property.

Appeal from District Court, Tulsa County; Saul A. Yager, Judge.

Action by Millie Naharkey, an incompetent, by the First National Bank & Trust Company, her guardian, against the Sand Springs Home, a corporation, to recover an undivided interest in real estate and a portion of the proceeds of oil and gas previously produced thereon. From a judgment for defendant plaintiff appeals.

Reversed and remanded.

RILEY J., dissenting.

Poe, Lundy & Morgan, of Tulsa, Earl Bohannon, of Parsons, Kan., and D. T. Mosier, of Muskogee, for plaintiff in error.

C. B. Stuart and E. J. Doerner, both of Tulsa, P. P. Pinkerton, of Sand Springs, and B. A. Hamilton, of Tulsa, for defendant in error.

BUSBY Justice.

In this action the plaintiff, Millie Naharkey (referred to herein as "Little" Millie Naharkey for the purpose of distinction), an incompetent, who is a three-quarters blood citizen of the Creek Nation, seeks through her guardian, the First National Bank & Trust Company, to recover from the Sand Springs Home, a corporation, a one-sixth interest in 80 acres of land described as the north one-half of the southwest quarter of section 2, township 18 north, range 12 east in Tulsa county.

It is admitted that the plaintiff was at one time the owner of the interest which she now claims and that she has not by voluntary and formal conveyance either personally or through a guardian divested herself of the title thereto. It is asserted, however, that she no longer owns the interest involved in the action by reason of a judgment in partition rendered in 1907 by the United States court in the Indian Territory, Western District.

The judgment of the trial court in this case was for the defendant, and the plaintiff has appealed appearing herein as plaintiff in error. We shall continue to refer to the parties as plaintiff and defendant, respectively.

The interest of the plaintiff in the land above described was acquired through inheritance from other enrolled citizens of the Creek Nation. The land is a part of the allotment of Millie Naharkey, a full-blood Creek (not the plaintiff herein), who is referred to in the record and in this opinion for the purpose of distinction as "Old Millie Naharkey." She died on the 2d day of February, 1901, before the selection of the allotment. On the 28th day of October, 1901, her allotment was selected for her, and allotment deed was later made to her heirs who were her husband, Mose Naharkey, a full-blood Creek, and the son of herself and Mose Naharkey one Sammie Naharkey, also a full-blood Creek. Each of such heirs received an undivided one-half interest in the land in question by virtue of the Creek law. Eysenbach v. Naharkey, 114 Okl. 217, 246 P. 603.

This being a "dead claim," the lands thus inherited were, prior to the Act of April 26, 1906, 34 Stat. 137, unrestricted in the hands of the heirs. Mullen et al. v. U. S., 224 U.S. 448, 32 S.Ct. 494, 56 L.Ed. 834; Skelton v. Dill, 235 U.S. 206, 35 S.Ct. 60, 59 L.Ed. 198. By section 22 of the act of 1906, 34 Stat. 145, restrictions were reimposed on the lands of full-blood heirs thus inherited (Brader v. James, 49 Okl. 734, 154 P. 560; Id., 246 U.S. 88, 38 S.Ct. 285, 62 L.Ed. 591; Sampson et al. v. Stapleton, 55 Okl. 547, 155 P. 213; McCosar et al. v. Chapman, 59 Okl. 78, 157 P. 1059; Bruner v. Nordmeyer et al., 64 Okl. 163, 166 P. 126; Cravens et al. v. Amos et al., 64 Okl. 71, 166 P. 140; Moffett et al. v. Conley et al., 63 Okl. 3, 163 P. 118; Parks et al. v. Roach, 88 Okl. 19, 210 P. 402), although restrictions were not thereby reimposed on the unrestricted inherited lands of heirs less than full-blood. Burtschi et al. v. Wolfe et al., 82 Okl. 27, 198 P. 306; Patterson et al. v. Carter, 83 Okl. 70, 200 P. 855.

Thus as applied to this case the land herein involved was, prior to the act of 1906, supra, unrestricted in the hands of Mose Naharkey and Sammie Naharkey, the full-blood heirs of Old Millie Naharkey. Before the act of 1906, supra, became effective, Mose Naharkey died. The date of his death was about December, 1905. Prior to his death and subsequent to the death of his former wife, "Old Millie," he had married Martha Red, a half-blood Creek. Of this latter marriage one daughter was born, namely, Little Millie, the plaintiff herein. His heirs were Martha Red Naharkey, half-blood wife, Sammie Naharkey, a full-blood son, and Little Millie, three-quarters blood daughter, each of whom, by the applicable law of descent and distribution, received one-third of the one-half interest (the wife's one-third being in lieu of dower) owned by Mose in the land herein involved, which one-third of one-half in each instance constituted one-sixth of the whole. Eysenbach v. Naharkey, supra. Sammie's one-sixth, when added to the one-half previously inherited by him from "Old Millie," enlarged his interest. The title was thus distributed among the heirs: Sammie four-sixths, Martha one-sixth, and Little Millie one-sixth. Sammie being a full-blood, restrictions upon alienation were reimposed in 1906 by section 22 of the Act of Congress of April 26th that year.

In January of 1907 Sammie Naharkey, as plaintiff, instituted an action in the United States Court for the Western District of Indian Territory against Martha Naharkey and Little Millie Naharkey, plaintiff herein (who was then about two years old), seeking a partition in kind of the land herein involved and other lands not involved in this litigation. Martha answered asking a one-third interest in lieu of dower. A guardian ad litem was appointed for Little Millie, and an answer was filed in her behalf asking partition. On March 19, 1907, a decree in partition was entered as a result of which the 80 acres which is the subject-matter of this litigation was set aside and given in fee to Sammie. Other lands were given to Little Millie and Martha.

In the case of Eysenbach et al. v. Naharkey, 114 Okl. 217, 246 P. 603, supra (former opinion same case 110 Okl. 207, 236 P. 619, petition for writ of certiorari denied by Supreme Court of United States, 269 U.S. 561, 46 S.Ct. 21, 70 L.Ed. 412), this court on collateral attack declared the judgment of the United States District Court for the Western District of Indian Territory void for want of jurisdiction of the subject-matter. The basis of our decision was that partition in kind of real estate inherited by full-blood citizens of the Creek Nation constituted an alienation thereof in violation of restrictions reimposed by section 22 of the Act of Congress of April 26, 1906.

It is urged by the defendant that our former decision was erroneous and that partition in kind does not constitute an alienation within the inhibition of the congressional act above mentioned. In support of its contention defendant calls our attention to language appearing in a few decisions from other jurisdictions (not dealing with the statute under consideration) which lends some color to the argument. It is difficult, however, to escape the obvious conclusion that through partition proceedings the former owner of an undivided interest acquires the fee in a particular tract or portion of tract in exchange for an undivided interest in other tracts or portions of the same tract. Partition in kind is thus a form of forced trade or exchange, and, as such, an alienation. We so held in Eysenbach v. Naharkey, supra, and we now decline to depart from the rule therein announced. See, also, Robinson v. Fair, 128 U.S. 53, 9 S.Ct. 30, 32 L.Ed. 415; Coleman v. Battiest, 65 Okl. 71, 162 P. 786; Lewis et al. v. Gillard et al., 70 Okl. 231, 173 P. 1136; Hoodenpyl et al. v. Champion, 71 Okl. 270, 177 P. 369.

Neither can we agree with defendant that the view adopted in Eysenbach v. Naharkey, supra, is inconsistent with the general plan of administering Indian affairs as manifested by the various acts of Congress and the treaties with the different tribes.

It is also asserted that the want of jurisdiction of the United States Court for Indian Territory does not appear on the face of the judgment roll and therefore a successful collateral attack cannot be maintained. This contention is based on the fact that while the judgment roll of the case in that court reflects the fact that the parties litigant were citizens of the Creek Nation, it does not reflect the quantum of Indian blood. It is argued that in order...